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April 19 — A U.S. Supreme Court decision striking down the Obama administration's immigration programs isn't out of the question, but the justices likely will rule in favor of those programs, attorneys said April 19.

American Immigration Council Legal Director Melissa Crow said the four justices that immigration advocates presumed would support the president—Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan—indicated during April 18 oral arguments that they “are very solidly in our camp.”

“We need a fifth vote” for the administration to win the case, which could come from either Justice Anthony Kennedy or Chief Justice John Roberts, Crow said. While both justices were engaged during arguments (74 DLR AA-1, 4/18/16), “neither indicated definitively which side they would come down on,” she said.

Crow spoke during a webinar hosted by the American Immigration Lawyers Association.

The case before the Supreme Court involves a challenge by Texas and 25 other states to two immigration programs that would provide temporary relief from deportation and work permits to some 5 million undocumented immigrants.

The deferred action for parents of Americans and lawful permanent residents program and expanded deferred action for childhood arrivals program have been on hold since a federal judge in Texas blocked them in February 2015 (31 DLR AA-1, 2/17/15).

Greg Chen, AILA's director of advocacy, said an “enormous” number of people will be impacted by the decision. In addition to the estimated 5 million undocumented immigrants potentially eligible for DAPA and expanded DACA, there are another 6 million U.S. citizens and lawful permanent residents living with those possible beneficiaries, he said.

Standing ‘Really Critical Issue.'

The “really critical issue” in the case appears to be whether Texas and the other states have standing—a sufficient injury to sue over the programs, Crow said. There was “very little questioning” during the oral arguments on the merits of the programs' legality, she said.

Crow said she was “pleasantly surprised” by a question from Roberts about whether Texas's basis for standing—that it will be required to spend money on driver's licenses for program beneficiaries—is more speculative than the injury asserted in Massachusetts v. EPA, 549 U.S. 497, 75 U.S.L.W. 4149 (2007).

There, the Supreme Court ruled that Massachusetts could sue the Environmental Protection Agency over a failure to regulate greenhouse gases, on the theory that the resulting climate change would negatively impact the state's coastline.

Roberts, Crow said, dissented in that case.

Breyer also made the point that there would be “dramatic consequences” if Texas and the other states are allowed to sue, Chen added. Essentially it would mean that any state could sue the federal government over any major program with which it doesn't agree, he said.

UCLA School of Law professor Hiroshi Motomura agreed that standing remained persistent during the oral argument.

“I could almost dictate for you” what an opinion by Ginsburg, Breyer, Sotomayor and Kagan would say, he said. But “I didn't get that impression from the other justices,” who were harder to read, Motomura said.

Texas Attorney Pressed ‘Weakest Arguments.'

“The only time that we got a real sense of what Justice Kennedy was thinking” was when he asked whether Texas should have sued the administration over a 30-year-old regulation allowing work authorization for deferred action recipients, Crow said.

The points that Texas Solicitor General Scott Keller “pressed most vehemently were actually his weakest arguments,” Motomura added. Keller “ran into trouble” by asserting that DAPA and expanded DACA confer legal immigration status, which only Congress can grant, he said.

“He frankly seemed to get quite bogged down” in that argument, whereas U.S. Solicitor General Donald Verrilli “did a nice job” of arguing that the programs don't grant such status, Motomura opined.

Much of the discussion of what DAPA and expanded DACA do centered around “lawful presence,” a term used in the 2014 memorandum establishing the programs, Motomura said. The term usually is quoted out of context, he said. In fact, he said, the memo states that the programs don't confer any kind of lawful immigration status.

Verrilli even said the phrase could be stricken from the memo entirely without consequence, Motomura said.

Understanding ‘Nub' of States' Complaint

The justices, in particular Kagan, did appear that they were trying to understand “the nub of the states' complaint,” Chen said. Kagan asked Keller whether or not Texas's complaint really was about the grant of work authorization, he said.

If the issue instead is the size and scope of the program, Sotomayor pointed out that past immigration initiatives granted deferred action to a larger portion of the existing undocumented population than what DAPA and expanded DACA would do, Chen added.

Erin Murphy of Bancroft PLLC, who argued on behalf of the House of Representatives, “kind of doubled down” on the states' lawful presence argument, Motomura said. Murphy argued that deferred action is “extremely limited,” and the executive “runs into trouble” if it attempts to formalize its decision not to remove certain undocumented immigrants, he said.

In that sense, she “created an opening” for the justices to determine that DAPA and expanded DACA are unlawful because of their scope, he said.

The U.S. Constitution's Take Care Clause never came up during the oral arguments, even though the justices asked the parties to brief the issue when they agreed to hear the case (11 DLR AA-3, 1/19/16), Motomura said.

That clause is especially relevant in the context of the three undocumented immigrants who are potentially eligible for DAPA and who were allowed to intervene in the case, Motomura said.

Their brief argues that they have a right to access deferred action in a “nondiscriminatory, uniform, predictable way,” which is grounded in the mandate that the executive faithfully execute the laws, he said.

But Mexican American Legal Defense and Educational Fund President and General Counsel Thomas Saenz, who argued on behalf of the immigrants, didn't get to make that case, Motomura said. Rather, the justices took up his time with questions on standing, he said.

Potential Floodgate of State Lawsuits

A decision finding that the states have standing and that DAPA and expanded DACA are unlawful could open the floodgates to a host of lawsuits by states disagreeing with federal policy, Crow said.

But that also means those states that agree with the programs and feel they would benefit from them could file their own lawsuit, she said.

“We're hoping we don't have to get to that,” she said.

“The possibility of a 4-4 decision is real here,” Motomura added. Such an outcome is more beneficial to the administration than a definitive ruling against DAPA, Motomura said.

The original DACA program, which has been operating since 2012, isn't at issue in the current lawsuit. But a precedential decision deeming DAPA unlawful likely would form the basis for a successful legal challenge to DACA, he said.

However, the Supreme Court, and Roberts in particular, “are very conscious” that the court will appear to be a “politicized institution” the more it issues 4-4 decisions, Crow said. “They want to avoid that at all costs.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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